Landlord and tenant — Rent review — Construction — Meaning of ‘fit for immediate occupation and use’
By a lease
dated August 19 1986 the respondent tenant holds from the applicant landlord a
term of 25 years from August 8 1986 of 27-37 Wigmore Street, London W1; the
lease contains provisions for a rent review on every fifth anniversary of the
term. If the rent at any review date is reviewed, to the ‘rack rental market
value of the demised premises’, clause 6(b) of the lease directs certain
assumptions are to be made including the following: ‘(1) That the demised
premises are fit for immediate occupation and use in a state of good repair and
condition and that all fitting out and other tenant’s works required by such
willing tenant have already been completed’. The premises had been let to the
tenant in the state described as a ‘developer’s finish’ and the tenant incurred
the expense of fitting them out before it could use them as offices. In respect
of the rent review for August 8 1991, a number of questions of construction
arose between the parties. The tenant argued that the valuation approach
required by clause 6(b)(1) was that on the review date the premises are fitted
out and completed but that work has been carried out by the hypothetical tenant
at his own expense (with the hypothetical landlord’s consent) prior to the
review date and prior, therefore, to the agreed letting. The landlord contended
for a valuation approach that at the review date the fitting-out works have
been completed, but without any assumption as to who carried out the work.
discover the parties’ intention from the written language which they have used.
It is only when their language lends itself to alternative constructions that
it is proper to depart from the literal by choosing the reasonable in
preference to the perverse. Under the lease it is the demised premises which
must be valued and these include works provided by the tenant (other than
tenant’s fixtures). Clause 6(b)(1) is completely neutral as to who carried out
the tenant’s requirements and it follows that the subclause similarly reflects
the possibility that the outgoing tenant’s expenditure might be of no value to
the landlord as an inducement to the hypothetical willing tenant, so it is
equally implicit that such expenditure should be disregarded. Accordingly, the
language of the rent review clause requires no assumption to be made as to who
paid for the hypothetical fitting-out works required by the hypothetical
willing tenant and, by parity of reasoning, requires no assumption to be made
as to what such (if any) works required by the hypothetical willing tenant
might be. It is sufficient for the valuer to know only that any such works have
been carried out and that such works will enable such tenant immediately to
occupy and use the demised premises as authorised by the lease. The
hypothetical willing tenant is not to be assumed to have suffered any financial
burden by reason of being allowed to fit out the demised premises during a
permissive period of occupation prior to the date of review.
The following
cases are referred to in this report.
Cornwall
Coast Country Club v Cardgrange Ltd [1987] 1
EGLR 146; (1987) 282 EG 1664
Iceland
Frozen Foods plc v Starlight Investments Ltd
[1992] 1 EGLR 126; [1992] 07 EG 117
Orchid
Lodge (UK) Ltd v Extel Computing Ltd [1991]
2 EGLR 116; [1991] 32 EG 57
Ponsford v HMS Aerosols Ltd [1979] AC 63; [1978] 3 WLR 241; [1978] 2 All
ER 837; (1978) 38 P&CR 270; [1978] EGD 137; 247 EG 1171, [1978] 2 EGLR 81,
HL
Pontsarn
Investments Ltd v Kansallis-Osake-Pankki
[1992] 1 EGLR 148; [1992] 22 EG 103
This was an
application by way of originating summons pursuant to section 2(1) of the Arbitration
Act 1979 for the determination of questions of construction of a lease dated
August 19 1986 and made between the applicant landlord, London & Leeds
Estates Ltd, and the respondent tenant, Paribas Ltd.
Michael Barnes
QC (instructed by Titmus Sainer & Webb) appeared for the applicant; Kim
Lewison QC (instructed by Linklaters & Paines) represented the respondent.
Giving
judgment, MR MANN QC said: This is an application pursuant to section
2(1) of the Arbitration Act 1979 whereby the parties to a reference seek with
the consent of an arbitrator the determination by the court of questions
arising upon the construction of a lease. The questions have been agreed by the
parties and set out in the originating summons by which the application is
brought before the court. For reasons which I need not recite, the application
is somewhat out of time under RSC Ord 73, r 5(3), but since neither party makes
any complaint about it I will give leave extending the time within which it may
be made. Accordingly, it is now regularly before me.
The lease,
made on August 19 1986 between London & Leeds Estates Ltd and Paribas Ltd
(then named ‘Banque Paribas Capital Markets Ltd’) and another for a term of 25
years from August 8 1986 of 27-37 Wigmore Street, London W1, reserves a
substantial rent which, by clause 6, is reviewable every fifth anniversary of
August 8 1986 (defined in the lease as a ‘Date of Review’). The rent review
clause (so far as material and with appropriate truncation) provides:
6(a) With effect from 8th August 1991 (‘the Date
of Review’) the yearly rent for the time being payable hereunder shall be
reviewed and from and after each such date of review the yearly rent shall be
such an amount (‘the Amount of the Revised Rent’) equal to whichever is the
greater of:
6(a)(i) the yearly rent payable immediately prior to
such Date of Review; and
6(a)(ii) the rack rental market value of the demised
premises at such Date of Review
6(b) The rack rental market value of the demised
premises at each Date of Review shall be such an amount as may be agreed
between the Landlord and the Tenant or determined in accordance with sub-clause
(c) of this clause as representing the best open market rent at which the
demised premises might if available reasonably be expected to be let as at such
Date of Review for a term having the unexpired residue of this term or of 15
years whichever shall be the longer with rent reviews every 5 years at the
relevant Dates of Review as between a willing landlord and a willing tenant with
vacant possession without taking a fine or premium and subject to the
provisions of this lease (other than the term and the amount of rent but
including these provisions for
6(b)(1) That the demised premises are fit for
immediate occupation and use and in a state of good repair and condition and
that all fitting out and other tenant’s works required by such willing tenant
have already been completed
6(b)(2) That no work has been carried out on the
demised premises by the tenant its sub-tenants or predecessors in title during
the term which has diminished the rental value of the demised premises
6(b)(3)-(6) .
. .
but taking no
account of:
6(b)(i) any goodwill attributable to the demised
premises by reason of any trade or business carried on therein by the tenant or
any lawful underlessee
6(b)(ii) any increase in rental value of the demised
premises attributable to the existence at the relevant Date of Review of any
improvements to the demised premises or any part of them carried out (with
consent where required) otherwise than in pursuance of an obligation to the
landlord . . . during the term or during any period of occupation prior to the
term arising out of any agreement to grant the term
6(b)(iii) any effect on rent of the fact that the
tenant . . . may have been in occupation of the demised premises; and
6(b)(iv) . . .
6(b)(v) any effect on rent of the absence of any rent
free period or contribution towards fitting out costs or other inducement which
might then be the practice in the open market to make or allow tenants on a new
letting with vacant possession
I need not
cite clause 6(c), which sets out the procedure for the review and reference to
an arbitrator. It is sufficient to know that the parties elected that the new
rent be determined by Mr GR Stanton FRICS of John D Wood and that questions of
construction having arisen he has given his consent to this application.
Rent review
clauses ought in principle to give rise to few problems given conveyancers’
familiarity with them. Such clauses are prima facie intended simply to
compensate landlords for changes in the value of money, which depreciate
historic rents and distort changes in the real value of property. On review,
landlords ought, in principle, to receive the current market rental value of
the building demised, less the rental value of improvements lawfully made and
for which tenants have paid. The formula evolved by conveyancers to carry this
principle into effect has been adopted by statute and is embodied in section 34
of the Landlord and Tenant Act 1954. The formula requires the current market
rental value to be assessed by reference to an assumed market place and
hypothetical willing landlord and tenant who will eventually agree upon the
terms of a new lease. Personal attributes, such as goodwill, of the tenant in
occupation including the fact of occupation are disregarded as are effects on
rent of the tenant’s improvements lawfully carried out otherwise than pursuant
to an obligation to the landlord.
It is a
regrettable fact, though, that this utopian ideal is rarely achieved in
practice, and there is now a considerable body of authority which amply
illustrates the organic properties of this branch of the law of landlord and
tenant.
The questions
on this application spring out of practices which, though general, are of
comparatively recent origin. These days office buildings are seldom finished or
refurbished fit for occupation and use by tenants. Developers are disinclined
to accept the financial risk of doing so since tenants’ tastes and requirements
differ widely. It is often better by far to offer a building to the market in a
state often described as ‘developer’s finish’ so that a tenant can fit out the
building. But in the tenants’ market which now prevails it is common also to
offer a prospective tenant a financial inducement to take a lease. Examples of
such inducements are rent-free periods (rent remissions), reverse premiums and
the like, which directly or indirectly contribute towards the tenant’s costs of
fitting out. Draftsmen try to provide for the rental effect of these and other
exigencies so that one or other of the parties shall not receive a double
benefit or, correspondingly, a double detriment on review. They do not always
succeed.
Although rent
review clauses introduce the concept of the willing hypothetical landlord and
tenant, it does not follow that it is appropriate to require valuers to value a
hypothetical building. It is axiomatic that there has to be some physical state
or quantum for the valuer to value if the task of valuation is not to be
rendered inordinately difficult or artificial; so hypothesis gives way to
actuality except to the extent that it is appropriate in order to do justice
between the parties. The balance of justice is struck by introducing specific
‘assumptions’ and ‘disregards’ in addition to the general assumptions and
disregards usually necessary to implant the hypothetical market place. These
specific assumptions and disregards therefore signpost the additional
departures from actuality which the parties agree should enable the valuer to
do justice between them.
Even so, it is
important to bear in mind the cardinal principle of construction that if
parties fail to reflect in their rent review clause what might otherwise be
supposed to be reasonable intentions, the court will enforce their language
notwithstanding: Ponsford v HMS Aerosols Ltd [1979] AC 63.
From the
general, I turn now to the particular — 27-37 Wigmore Street is an office
building with 11 floors, including a basement and ground floor. The applicant
landlord let it to the respondent tenant in a state of ‘developer’s finish’.
The tenant had to incur the expense of fitting out the demised premises before
it could use them as offices. The language of the rent review clause allows the
tenant no credit for this, but subclause 6(b)(1) is said to admit of three
possible valuation approaches, one of which might do, namely: (1) at the review
date, the demised premises are physically in a state of ‘developer’s finish’;
and (2) the premises are fitted out and completed at the review date but that
work has been carried out by the hypothetical willing tenant at his own expense
(with the hypothetical landlord’s consent) prior to the review date and prior,
therefore, to the agreed letting.
Approach (2),
therefore, predicates:
(a) that consent for the tenant’s works has been
given some months prior to August 8 1991, and
(b) that at the review date, on the one hand the
hypothetical willing tenant does not have any period of time within which to
fit out, but on the other hand he is treated as having paid for it because he
has done the work himself. This is the approach for which the tenant argues in
the present case.
The landlord
argues for the third approach, which is:
(3) at the review date, the fitting-out works
have been completed as in (2), but there is no super-added assumption as to who
has carried out the work.
It is common
ground that the first approach is in apposite. The rental effects of these
approaches have been canvassed in correspondence between the expert valuers
appointed by the parties respectively. I shall allude to these as necessary
later in this judgment but as the questions which they raise are agreed upon
there is no need for me to refer to them specifically or at length.
The questions
are:
(1) Whether it is to be assumed that the fitting
out and other tenants, works required by the willing lessee (‘the hypothetical
fitting out works’) have been carried out at the expense of the willing lessee;
(2) If the answer to question (1) is in the
affirmative whether it is to be assumed that the hypothetical fitting out works
have been carried out (a) before or (b) after or (c) simultaneously with agreement
on the rent;
(3) If the answer to (1) is affirmative whether
it is to be assumed that the willing lessee has been permitted a period of
occupation to enable the hypothetical fitting out works to be completed;
(4) If the answer to question (1) is in the
negative whether the rack rental market value of the premises is to be assessed
on the assumption that the landlord is entitled to the increase (if any) in the
rack rental market value attributable to the hypothetical fitting out works;
(5) If the answer to question (4) is in the
affirmative whether the increase is to be diminished if and to the extent that
the hypothetical fitting out works are found by the arbitrator to be the same
as the actual fitting out works (or other work of improvement) carried out by
the Respondent.
There is a
sixth question, namely:
(6) Where (a) the practice in the open market at
the review date is that a rent free period or contribution towards fitting out
costs or other inducement would be made or allowed to a new tenant of the
demised premises, and (b) the absence of such benefit being available to the
willing lessee would reduce the rent below what it would otherwise be, whether
that reduction is to be left out of account in determining the rack rental market
value of the demised premises.
While not
ignoring relevant surrounding circumstances such as I have described, the
correct approach to questions of construction is to seek to discover the
parties’ intention from the written language which they have used. It is only
when their language lends itself to alternative constructions that it is proper
to depart from the literal by choosing the reasonable in preference to the
perverse.
By clause
1(2)(f)(viii) of the lease, the demised premises include
all fixtures
(other than trade or tenant’s fixtures) . . .
Thus, the
premises which are to be valued exclude the actual tenant’s fixtures and
fittings in the legal sense of fixtures and fittings which are severable from
the building of which the demised premises form part and include others
which the tenant has provided but which because
unseverable from it so as to fall to be treated either as landlord’s fixtures
and fittings or simply as part of the building (I shall call these ‘tenant’s
residual works’).
So this is the
physical state or quantum of the demised premises which (leaving aside
the result of work of a type within subclause 6(b)(ii)) clause 6(b) prima
facie requires to be valued. However, subclause 6(b)(1) now requires it to
be assumed that:
all fitting
out and other tenant’s works required by such willing tenant have already been
completed
which
inferentially predicates that the tenant’s residual works could just as well
suit the hypothetical willing tenant’s requirements as not, so as possibly to
be of no value at all either to such tenant or, it must follow, to the
hypothetical landlord. The subclause is completely neutral as to who carried
out the tenant’s requirements.
It must follow
that the subclause similarly refelcts the possibility that the outgoing
tenant’s expenditure might be of no value to the landlord as an inducement to
the hypothetical willing tenant, so it is equally implicit that such
expenditure should be disregarded. By contrast, subclause 6(b)(ii) prohibits
any account being taken of any increase in rental value attributable to
expenditure by the tenant of a type within that subclause, that is, a
qualifying improvement which, inferentially, benefits the landlord’s reversion.
Accordingly,
the language of the rent review clause requires no assumption to be made as to
who paid for the hypothetical fitting-out works required by the hypothetical
willing tenant, and, by parity of reasoning, requires no assumption to be made
as to what such (if any) works required by the hypothetical willing tenant
might be. It is sufficient for the valuer to know only that any such works have
been carried out and that such works will enable such tenant immediately, that
is at the date of review, to occupy and use the demised premises, and in
this context ‘use’ means as authorised by the lease.
It is no less
trite in the specialised field of landlord and tenant law than it is under the
general law that a term is not to be implied as a term of a written agreement
except where it is necessary to give effect to the parties’ plain and obvious
intention.
The curiosity
in this case is that both parties contend that their opposing contentions
require an implication to be made as to which of the hypothetical willing
landlord and tenant carried out the hypothetical fitting-out works. Thus, on
the one hand, the tenant contends that because the landlord’s argument is that
none of the fitting-out works required by the hypothetical willing tenant have
been carried out by the tenant it is necessary to assume that the landlord
carried out such works, which is contrary to the fact and would result in an
injustice to the tenant. This is because in such circumstances the valuer must
assume that the hypothetical tenant has suffered from no financial burden in
fitting out the demised premises. The landlord will, therefore, benefit from a
rental uplift unjustified by any expenditure on its part.
The landlord,
on the other hand, contends that the tenant’s argument that the hypothetical
willing tenant has been allowed into occupation before the date of review, in
order to carry out the works, necessitates introducing additional words into
subclause 6(b)(1).
In my
judgment, these divergent possibilities amply illustrate the reason for the
legal principle. The court cannot possibly know whether the parties would have
agreed upon a term appropriate to provide for what they each perceive the
problem to be and, for my part, I do not perceive there to be a problem for
which the parties have not in any event adequately provided.
The
construction for which the landlord contends results in it getting the benefit
of any effect on the rent of it being assumed that the hypothetical willing
tenant can immediately occupy and use the demised premises. It does not
follow that it will unjustly get the benefit of works for which the actual
tenant has paid. Indeed, by inference, they have agreed that such works shall
be treated as of, at most, nominal benefit to the landlord’s reversion, since had
they deemed otherwise subclause 6(b)(ii) would, certainly should, have
prohibited any account being taken of any increase of rental value or rental
effect attributable to these works also being in existence at the date of
review.
Moreover, in a
case where a landlord has offered and the tenant has accepted an inducement to
take the lease, such landlord has, ex hypothesi, directly or indirectly
contributed to the costs of such works, even notionally paid for them, at the
inception of the lease; so there is plainly no justification for the tenant
receiving the benefit of an assumption which is neither express nor necessarily
consequential on subclause 6(b)(i). It is a fortiori where the tenant
has not received an inducement.
There is
therefore no warrant for the court to presume that the parties intended
differently. Accordingly, no consequential assumption is necessary either way.
In particular, the hypothetical willing tenant is not to be assumed to have
suffered from any financial burden by reason of being allowed to fit out the
demised premises during a permissive period of occupation prior to the date of
review.
If further
support were needed for this construction, it can be found in the language
which the parties have incorporated in the rent review clause, for if subclause
6(b)(1), in particular the specific directions as to fitness for immediate use
and fitting-out works to the hypothetical willing tenant’s requirements having
already been completed, were absent, evidence of market practice would warrant
the valuer assuming that the hypothetical willing tenant might have to fit out
notwithstanding the presence of subclause 6(b)(v) which directs, inter alia,
that no account shall be taken of any effect on rent of the absence of any
market practice of offering predicated types of inducements. Subclause 6(b)(1)
therefore serves the specific purpose of preventing the tenant from praying in
aid a different type of inducement, namely that of offering to a hypothetical
willing tenant the option of taking up occupation prior to the lease in order
to carry out fitting-out works in so far as this type of inducement is not
subsumed within the language of subclause 6(b)(v). Alternatively, it underpins
subclause 6(b)(v), should it embrace a market practice comparable to that which
the tenant’s valuation approach predicates, though I know not whether such
exists.
There is, I
would add, an inherent conflict in the tenant’s approach to valuation in any
event because the hypothetical market place assumes not only that the parties
will come to terms at the date of review but also that the new term will
commence at such date, which appears to me logically to favour a construction
which precludes any assumption of a prelet occupation period for fitting out or
any other purpose.
Counsel for
the tenant, Mr Lewison QC, submitted that the landlord’s construction will
produce an injustice because on review the landlord will receive an income
return on a capital injection which the landlord never made. For the reasons
which I have stated, I do not agree.
Counsel for
the tenant also submitted that the court leans against construing a rent review
clause in a sense which requires the valuer to decide for himself how to value.
I am not sure that I understand why the landlord’s construction places an
inappropriate or unusual burden on the valuer which should influence the court
to an alternative construction. But where, as in this case, the language admits
only one construction without the implication of an additional or consequential
term, it would, in my judgment, be singularly inappropriate and wrong in
principle for the court to do so. I might add that it would be presumptuous of
the court to make any assumptions as to the competence of valuers highly
experienced in their field of specialisation to resolve what is pre-eminently a
problem of valuation.
Accordingly,
clause 6(b)(1), construed literally, requires the valuer to assume:
(a) that the hypothetical willing tenant can take
up occupation at the review date, and
(b) that the hypothetical willing tenant can
actually use the demised premises from such date for the purposes permitted by
the lease.
It does not
require or let in a super-added assumption as to what the fitting-out work
consisted of or who did it.
A number of
authorities have been cited in argument, including Cornwall Coast Country
Club v Cardgrange Ltd [1987] 1 EGLR 146*, Orchid Lodge (UK) Ltd
v Extel Computing Ltd [1991] 2 EGLR 116† , Iceland Frozen Foods plc
v Starlight Investments Ltd [1992] 07 EG 117‡ and Pontsarn Investments Ltd v Kansallis-Osake-Pankki
[1992] 22 EG 103§ .
*Editor’s
note: Also reported at (1987) 282 EG 1664.
† Editor’s
note: Also reported at [1991] 32 EG 57, [1991] 2 EGLR 116.
‡ Editor’s
note: Also reported at [1992] 1 EGLR 126.
§ Editor’s
note: Also reported at [1992] 1 EGLR 148.
Cornwall was cited for Scott J’s clarification that hypotheses can properly
be used as a basis for valuation only when they are expressly directed to be
taken into account: see pp 149K-M, 150A-D, 152H-T. With respect, that is
obviously correct. The valuer has to enter and leave the dreamland created for
him by the same gate through which
for him to browse in of which he alone is aware and to which he alone has the
key, and there is no reason in law for the court to cut one for him.
In Orchid
the Court of Appeal had to decide what physical state or quantum the
valuer had to value having regard to the language of a proviso in a licence
permitting assignment and change of user. The proviso was in these terms:
Whilst it is
authorised to use the Demised Premises for the purposes authorised in the
Schedule hereto and the Assignee does in fact occupy the Demised Premises for
those purposes the rent payable pursuant to the terms of the Lease will be
reviewed in accordance with the provisions for review contained therein on the
basis of the authorised use at the relevant review date (the Assignee hereby
acknowledging that the Demised Premises are fit for use and occupation
therefor) assuming a willing Lessor and a willing Lessee but disregarding any
improvements carried out to the Demised Premises by the Tenant otherwise than
in pursuance of an obligation to the Landlord
Nearly nine
months later, the landlord licensed the assignee to make extensive alterations
to the demised premises.
Delivering the
principal judgment, Dillon LJ held that the relevant state or quantum
was that which existed at the date of the license to assign, that is, before
the permitted alterations took place. This was because of the assignee’s
acknowledgement that the demised premises were then fit for use and occupation
as authorised by the schedule which was inimical to an alternative construction
that would have required the valuer to value some hypothetical building fit for
use as authorised, but which had never existed and never would. Conversely, it
did not matter that the valuer would have to value something which did not
exist at the date of review because the assignee’s improvements had to be
disregarded.
The case is of
relevance as yet further authority for the correctness of the approach adopted
and analysed by Scott J in Cornwall.
Iceland, where a review clause required a valuer to assume premises,
remain in
existence and are ready for immediate occupation and use
embodies the
same reasoning. I shall need to refer to certain of it later in this judgment.
In Pontsarn,
where the assumption was,
vacant but
fit for immediate occupation and use
Paul Baker QC,
sitting as a deputy judge of the High Court, stated, obiter, that the
reasoning in Iceland was fatal to a landlord’s contention that:
The expert is
required to assume that the premises are fitted out ready for occupation by a
hypothetical tenant. The building is not in a shell state but fitted out so
that the tenant can just walk in and start business. It does not matter who
paid for it. This has the consequence that there is to be no remission of rent to
allow for fitting out to be done. But there is to be an uplift of rent because
the hypothetical tenant does not have the financial burden of paying a capital
sum to get in
He preferred
the tenant’s contention, which involved making a distinction between premises
‘fitted out’ and premises ‘fit for immediate use’. The tenant argued:
the
expression ‘fit for immediate use’ . . . meant that the building was free from
defects and ready for the tenant to go in, fit it out for his business and
commence trading. A building is fit for occupation when it is ready to be
occupied for fitting-out purposes. Ready for occupation does not mean ready for
a tenant to go in and start trading immediately. If this were correct, it would
mean that a tenant could negotiate for a reduction of rent over the fitting-out
period . . .
As the tenant’s
argument illustrates, there is possibly a difference between the assumption in
that case and an assumption that the demised premises have already been fitted
out to the tenant’s requirements; the latter being a concept which, so to
speak, oversteps a condition that the premises are fit for occupation.
Paul Baker’s
reasoning was that the landlord’s construction would give the landlord more
than compensation for changes in the value of money, that is, rent for
something which the landlord had not provided. He was thus adopting a purposive
approach to construction; one which is irreproachable on general principles if
the parties’ choice of language warrants it. However, fatal to the landlord’s contention
was a passage in the judgment of Dillon LJ in Iceland, where, at p 110,
he said,
But it seems
to me to make nonsense of the rent review clause as drawn and of the aim that
the rent on review should be fixed so as to bear as close a resemblance to
reality as possible, if it is not possible to charge rent for actual
improvements but is possible to charge the actual tenant with rent for
hypothetical improvements which have never been carried out.
But Dillon LJ
was addressing himself to a contention that though the premises were to be
taken as being in their actual condition for the time being, even so the valuer
must value on the basis that the hypothetical willing tenant would be able to
carry out works amounting to improvements themselves dependent upon the
fulfilment of a number of hypotheses none of which were predicated by the
assumption let alone language elsewhere in the lease.
In the present
case, the assumption necessarily involves taking into account the rental effect
of the existence of hypothetical fitting-out works, possibly including
improvements, even though the actual tenant’s improvements within subclause
6(b)(ii) are required to be left out of account. It is neither necessary nor
permissible to make any additional assumption as to what that work might have
been or who might have paid for it. It is simply irrelevant.
I shall
therefore answer the questions in the originating summons as follows:
(1) No; (2) and (3) are not applicable; (4) Yes;
(5) No.
It was common
ground between Mr Barnes QC for the landlord and Mr Lewison QC for the tenant
that the answer to question (6) is ‘Yes’.
I am indebted
to counsel for their submissions.
Declarations
accordingly.
